Google's search engine results are free speech and I don't care

Have you heard: the latest and greatest tech-law debate concerns whether Google search results are protected by the First Amendment to the US Constitution?

Of course, they are. Maybe if those results were just automatically generated page rankings they wouldn't be. But, since actual people at Google manipulate the results -- exactly how and how much Google won't say -- the content is editorial in nature and is therefore as protected by the First Amendment as the front page of the Wall Street Journal.

In case you're interested in the full battery of legal arguments, you're free to endure the recent white paper commissioned by Google on the subject. In 27 pages, the law professor Eugene Volokh, who is too smart to be writing commercial white papers, makes the case for search engine results as protected speech so convincingly that there's little point in trying to refute him. Yes, he was paid by Google's law firm to write it. Yes, the arguments are still decisive.

Why is the status of search-engine results important? Google is laying the legal foundations for an antitrust defense that probably won't matter. Free speech or no, the FTC is still going to try to break up monopolies, and when Google triumphs over the FTC it will be a victory of attrition not the Constitution.

Perhaps more realistically, when know-nothing legislators try to force Google to make its search results more "fair," a First Amendment line of argument may come in handy. Later, the same arguments may undermine Google when it argues that it's just delivering non-judgmental search results, but I'm sure they'll try to maintain both positions.

In the end, though, I don't really care whether Google search results are protected speech or not, and I think the whole discussion is a waste of time. Here's why:

1. Google is the best search engine

There's one reason and one reason only that Google is a verb: because Google is the best search engine. My friend Jeff is the only person I know who doesn't say he's going to "Google" something when he searches. He uses “Bing” as a verb. He actually says, in his Texas drawl, "I'm gonna Bing that!" Jeff is not stupid, he's just mistaken and a little eccentric.

That of all the intelligent people I know only one of them prefers Bing to Google explains why Google has an 87.9% global search-engine market share and Bing has 4.2% -- with probably something like 4.1% of that number accounted for by people using Bing unintentionally because they use a browser with Bing as the default.

2. Being the best is fragile

I switched to Google years ago when I noticed that my existing search engine results sucked compared to the results from this minimalist newcomer. If Lycos and Excite ever come up with better search engine results than Google, I'll switch back to them (do they still exist?).

As Google rightly says, "Competition is just one click away." Legislators are welcome to waste years and zillions of our dollars trying to make Google more fair and less gigantic, but if Google ever stops being the best the users will take care of the situation by the end of the week. And, as long as Google remains the best, attempts to regulate it can only hurt users.

Strip away everything else: Android, all the cool free stuff we get from Google like Gmail and Sketchup, and Google TV (okay ignore that one), and Google is still Google. Strip away the search engine and you're left with nothing.

3. Google will beat the US government

We can debate the intricacies of antitrust law forever, but the notion that the US government can take Google in the courtroom is absurd. Google is smarter and more tenacious than the government's team will ever be, even if the government uses private lawyers paid for by the taxpayers.

Google will outlast presidents, judges, and FTC heads until the government gives up. Other countries are welcome to try too -- their reward, in the unlikely event Google can be beat in any modern court system, will be that Google will take its products elsewhere and their citizens will be stuck with Bing.

Trying to break Google up is a monumental waste of time, money and effort. Putting us through a mega Google antitrust trial is almost as stupid as putting the United Nations in charge of the internet -- the subject of my next post.

About the author: Steven A. Shaw is a former litigator and is the Executive Director of the Society for Culinary Arts & Letters.